Do recent cases prevent Employers from snooping on their Employees during work time?

Three recent cases, all determined by the European Court of Human Rights (“ECtHR”) have all held that various acts of surveillance by employers upon their staff have infringed their employees’ rights to pursuant to Article 8 (1) of the European Convention on Human Rights (“ECHR”).

Does this effectively mean that snooping on staff during work hours is prohibited under all circumstances?

The Background

Article 8(1) of the ECHR states that “everyone has a right to respect for his private and family life, his home and his correspondence”.

Article 8(2) of the ECHR provides that a public authority should not interfere with the right to privacy “except such as in accordance with the law and is necessary in a democratic society” in the interests of national security, public safety, or the economic-wellbeing of the country; for the prevention of disorder or crime; for the protection of health or morals; or for the protection of rights and the freedom of others.

The right to respect for correspondence under Article 8 protects the right to communicate and the confidentiality of private communications. It amounts to a right to communicate without interception or screening by a third party. The ECtHR has held that it covers letters, email and telephone conversations, even at work.

Case Number 1: Barbulescu v Romania

I did a full blog on this case on 24 October 2017. Please refer to that for full details.

In short Mr Barbulescu was employed by a heating company as an engineer in charge of sales. At his employer’s request he set up a Yahoo Messenger account to deal with client enquiries. The employer did have a policy which strictly prohibited any personal use of its IT equipment and had also issued a notice to its staff reiterating this. However neither the policy nor the notice stated expressly that the content of communications would be monitored or intercepted.

Over the course of a whole week the employer monitored Mr Barbulescu’s use of the Yahoo Messenger system. They found that he had used it for personal purposes in contravention of

Its IT usage policy. For example he had exchanged a number of messages with his fiancée as well as his brother.

As part of the disciplinary process that followed, the employer printed out and provided a 45 page transcript of the communications. This was printed on a shared printer, and as a result it was discussed publically.

Mr Barbulescu was dismissed for unauthorised personal use of the IT equipment, and his internal appeal failed. He challenged his dismissal in the Romanian Courts but unsuccessfully.

Initially the ECtHR found against his believing that the monitoring was a proportionate inference with his Article 8 rights.

Mr Barbulescu appealed to the Grand Chamber of the ECtHR and by a majority of 11 to 6 they found that his Article 8 rights had indeed been infringed.

The main reasons for this finding included the following:-

The policy and notice did not unequivocally and clearly state that the employer could and would access content from emails etc.

The extent of the monitoring was excessive, in that content was monitored over a significant period of time. The monitoring could have perhaps been limited to a shorter period of time and perhaps just covered the subject matter or title of the communications.

There was not a legitimate reason to justify the monitoring of the communications and the content. For example if actual content requires monitoring then this will require weightier justification. Here the so called legitimate reason was to ensure that the employee was working during working hours, and this was not sufficient.

There was no adequate safeguards in place, for example junior members of staff could have access to the transcripts which included content.

It was also noteworthy that the ECtHR found that the Romanian authorities did not provide adequate protection of Mr Barbulescu’s right to respect for his private life, since for example there was no Romanian equivalent of the Data Protection Act 1998.

Case Number 2: Antovic and Mirkovic v Montenegro

I refer to the full report on this case in our blog of 11 January 2018.

The University of Montenegro made a decision to install surveillance cameras within a university auditorium with the intention of protecting the safety of property, students and staff and also to monitor teaching. Two of the professors at the University’s School of Mathematics complained that this was a breach of their Article 8 privacy rights.

The domestic courts found no violation of Article 8 as the surveillance cameras were limited to capturing public teaching areas.

However the ECtHR found in favour of the professors. They held that the auditorium should be treated like any other work place and they found that the surveillance amounted to a considerable interference with the professors’ rights to respect for privacy.

The main reason for the finding by the ECtHR was that they did not feel that the surveillance here was a justifiable means of achieving a legitimate aim. There was no substantial evidence that people or property had been at risk, and therefore they felt it was not justifiable to monitor teaching in such circumstances. Hence they held there had been a violation of Article 8.

Case Number 3: Lopez Ribalda and others v Spain

This is a recent case from January of this year. In this case a supermarket installed surveillance cameras to address suspected theft. The workers in the supermarket were only told about the visible cameras and were not told about other cameras which had been placed covertly.

Several employees were dismissed following on from covert images obtained. They alleged breach of Article 8 as well as breaches of data protection rights.

The Spanish courts held that the measures taken by the supermarket were justified, appropriate, necessary and proportionate. However the ECtHR disagreed and found that Article 8 had been violated. They found that video surveillance in the work place was a considerable intrusion into private life, and were critical of the fact that the staff had not been informed in advance of the possibility of the installation of covert cameras.

Does this therefore mean that an employer can never snoop on an employee?

The short answer to this is no, but an employer must be very careful indeed if it is going to undertake any form of surveillance of its employees, whether by monitoring IT systems or by video surveillance or other means.

If an employer is going to have any realistic chance of avoiding an infringement of Article 8 then at the very least it must do the following:-

Have a clear and unequivocal policy, which is brought to the attention of the staff, which allows for the form of surveillance that is put in use.

If the surveillance is likely to be intrusive, for example covert cameras, or monitoring of content of email communications, then the policy must clearly state that such surveillance will include this.

There must be adequate safeguards. For example any surveillance must be undertaken over a short as period as possible, recordings should only take place in suitable places and only a limited number of people should have access to the surveillance material.

In accordance with the Information Commissioners’’ Employment Practices Code issued under the Data Protection Act 1998, there must be an impact assessment to ensure that the employer has achieved the correct balance between protecting the employees’ privacy and the interests of the business. For example if the surveillance is required in order to detect crime or for health and safety reasons, then this should be clearly stated and this may justify more intrusive forms of surveillance (e.g. covert surveillance, monitoring of content of emails etc.).

I would highly recommend that if you are considering any form of surveillance of your employees at work that you take legal advice first to ensure so far as possible that you will not be infringing the Article 8 rights of your staff.

It is possible to snoop on your staff still, but it has to be done in a very careful and regulated way.

If you need any advice on the subject matter of this article then please do not hesitate to contact a member of the Chattertons’ Employment Team.